Reform might be surging in the Red Wall, but there’s at least one resident of County Durham — specifically, of HMP Frankland — who will be hoping the party doesn’t sweep to power at the next election. Apparently envisaging British justice as a reality show presented by Danny Dyer, Nigel Farage recently announced his intention to send 10,000 of our most violent criminals to draconian jails abroad. “If that means that Ian Huntley goes to El Salvador, well our attitude is, so be it,” the Reform leader declared.
To make the point more vivid, the Telegraph helpfully ran an article about what ordeals the Soham child murderer might face in the El Salvadorean megaprison CECOT, where prisoners are “allegedly beaten, sexually abused, fed rotten food, and leave with missing teeth”. (The last part, at least, is fake news — prisoners rarely ever leave CECOT at all, except in a box.) It’s all a far cry from Huntley’s reported current schedule of “DVDs, chess games, and frequent trips to the gym”.
With the UK judicial system now looking partisan and/or arbitrary to many, taking a leaf out of the Trumpian playbook might seem a natural move for fellow populist Farage. Earlier this year, the US President’s officials sent 238 Venezuelans accused of gang membership to CECOT; they have since been repatriated to their home country, and have spoken of the experience as “hell” and “like a horror movie”. During a summit with El Salvadorean leader Nayib Bukele in April, Trump talked of his intention to send “homegrown criminals” to the foreign megaprison too. But transferred from the symbolic realm of mirror-shaded American thug machismo to that of bumbling, half-cut British prevarication, there is surely something fantastical about the idea of our ever actually emulating the US scheme in practice.
The Americans have ICE, which sounds like a superhero franchise; we have the Home Office, which sounds like an expense declared on a tax return. They have Secretary of Homeland Security Kristi Noem, filming her videos standing in front of tattooed men in cages; we have Home Secretary Yvette Cooper, sending viewers to sleep with long answers about her one-in-one-out scheme on TikTok. And of course — for the moment anyway — we also have the European Court of Human Rights. But anyway, the optics of outsourcing criminal punishment to foreign chaps seems a bit weird for an arch-Brexiteer like Farage — weren’t we supposed to be taking back control?
“The optics of outsourcing criminal punishment to foreign chaps seems a bit weird for an arch-Brexiteer like Farage.”
Still, whether or not Huntley eventually finds himself enrolled on the world’s most brutal Spanish language immersion course, it is clear that attitudes are changing. The British Right is increasingly happy to play up the idea of criminal justice as both retribution and deterrent, and not as the attempted rehabilitation of social unfortunates, as many progressives would prefer to frame it. And it seems that the general public approves. One recent poll has 67% of respondents “strongly” or “somewhat” supporting chemical castration for serious sex offenders. Other polls suggest there is significant backing for reintroducing the death penalty for specific crimes. Stuck in cheek-turning mode for decades, we now seem to be heading towards an explicitly eye-swapping phase.
Partly, this expresses a simple desire to get some order back into a chaotic situation. On Tuesday, Dame Anne Owers’ independent review into prison capacity was published, identifying a raft of Tory planning failures that eventually led to last year’s government decision to release thousands of offenders early, including some with convictions for violence. At least one of those released went on to immediately reoffend. It was also reported on Tuesday that, faced with the prospect of a massive Palestine Action protest this Saturday, the Ministry of Justice has launched its “capacity gold command” emergency protocol to deal with an influx of dangerous placard-wielding Quakers and Anglican priests into a prison system already 97.5% full.
While Reform voters might not care much about the fate of pro-Palestinian protesters, they certainly care about that of Lucy Connolly, still in jail for an inflammatory tweet while delivery drivers who sexually assaulted a child have received exactly the same sentence. “Sticks and stones may break my bones but words can never hurt me” was a familiar playground chant in my childhood. It may not be true, strictly speaking, but the implied common-sense message about policing priorities now seems entirely lost on both Left and Right.
But the increased enthusiasm for harsh measures is perhaps also a reaction to the inability of some naïve politicians to see the law as having any deterrent function at all. This myopia was apparent in two recent parliamentary decisions: to decriminalise abortion for mothers up until birth, and to make doctor-assisted suicide legal. In both cases, the thought that the existing law, with criminal penalties attached, might be deterring people from abusive, coercive, or dangerous decision-making was ignored by supporters of the changes in question. Instead, we were exhorted to think mainly of those poor, well-intentioned people who suddenly find themselves killing a viable baby in the womb or offing an ageing parent, and who are then undeservedly tormented by the prospect they might be put away.
Still, noticing that a law has a deterrent function, among other useful things it does, is one thing. Inventing highly theatrical punishments, only or mainly to act as sources of deterrence is another. In response to Trump’s CECOT initiatives, there have been lots of progressive-badged pieces ruefully lamenting that for this President, the “cruelty is the point”. But while this analysis fits with the usual depiction of Trump as cartoon villain, in fact it gets things exactly backwards.
The biggest problem with CECOT-style ventures for those of genuinely liberal sensibilities is not that cruelty is being pursued by politicians as an end in itself. Rather, it is that cruelty is being used quite calmly and deliberately as a means, calculated to send a wider message as its main object. The performative infliction of painful, humiliating punishments on particular individuals is done for the supposed wider good: to intimidate onlookers into avoiding behaviour harmful to the perceived social order. (And the people who have spent the last few years making denunciations and signing open letters really ought to know this stuff.)
Though they are often thought to go together, this utilitarian attitude doesn’t sit very well with the classical goal of retributive justice, which is tightly focused upon the wrongdoer and attempts to calibrate his punishment to exactly fit his crime. In the retributive paradigm, improving effects upon onlookers are treated as welcome by-products, not the main event.
But equally, punishment viewed mainly as a deterrence strategy doesn’t fit with the liberal attitude to personhood. Pantomime displays of punishment pour encourager les autres dehumanise their targets and are meant to, turning them into edifying symbols for the masses. As with the ranks of shaven-headed prisoners in El Salvador, the visually humiliated figure becomes replaceable with any other warm body that would have done the same off-putting job. Steeped in the inheritances of 19th-century liberalism as we are, this is unpalatable even when applied to manifest wrong ‘uns — though reflecting on the likes of Huntley helps with the qualms.
And as Michel Foucault pointed out in Discipline and Punish, there is another aspect of a deterrence strategy that unnerves modern minds: namely, the naked display of state power. Rather than public acts of violence carried out on behalf of a single strongman ruler, the 19th-century liberal mindset came to prefer judicial power to be distributed across many separate institutions and mechanisms. It also liked punishment to happen behind closed doors. This radical change — from hangings, burnings, beheadings, scaldings, skinnings, drawings, and quarterings, carried out in full view of the crowd, to more bloodless acts meted out behind prison walls — had two consequences, according to Foucault, and each of them seem highly pertinent to the present situation.
The first is that punishment, once hidden from the public gaze, left “the domain of more or less everyday perception” and entered “that of abstract consciousness”. In other words: most of us, liberated from any concrete knowledge about what goes on in the prison system, are free to imagine whatever we want about it, whether that involves outrageously cushy set ups or horribly brutal regimes.
And second: once displays had been abolished, what was officially supposed to discourage crime and to instil confidence in the general public was no longer “the horrifying spectacle of public punishment” but rather the “certainty of being punished”. And since these days there is in fact no certainty of being punished — except perhaps for placards or tweeting — it is not surprising that the system is on the verge of losing public confidence, nor that political opportunists are going for the Danny Dyer pantomime option instead.
